Book Review: Judicial Activism in Bangladesh: A Golden Mean Approach by Ridwanul Hoque

Ridwanul Hoque, Judicial Activism in Bangladesh: A Golden Mean Approach (Newcastle upon Tyne, UK: Cambridge Scholars Publishing 2011) xli + 348 pp. ISBN: 9781443827331.to

The book under review, Judicial Activism in Bangladesh: A Golden Mean Approach, by Ridwanul Hoque, currently a Professor of the Department of Law at University of Dhaka, puts forward its own conceptualization of judicial activism. Judicial activism has emerged as an essential instrument of creativity in law-making and policy framing by judges around the world, increasingly recognised as a tool of redressing injustice when legal formalism fails to secure justice. Judges are now engaging in judicial activism to give new life to the black-letter laws to arrive at a legal solution or to remove the rigidity and deficiencies of laws or to fashion novel or effective remedies in order to do justice (p.3). The author distinguishes judicial activism from judicial excessiveness and seeks to develop a necessity based, socially relevant form of enlightened judicial activism and demonstrates that judicial activism can be exercised in a principled and pragmatic way, without rupturing the institutional balance among the organs of the state (p.6). The author has shown this middle ground judicial activism as a golden mean approach standing between excessive judicial assertion and unacceptable judicial passivity (p.245).

The book then critically examines the evolving global trend of judicial activism with particular reference to Bangladesh. The author outlines and analyses the conception and evolution of judicial activism in Bangladesh from the viewpoint of socio-political needs and realities. It assesses the development of Bangladeshi judicial activism in different constitutional regimes and particularly public interest based judicial activism. It concludes by suggesting a way forward for balanced but robust judicial activism in Bangladesh.

This book is a combination of eight chapters. Following the introductory chapter consists of focus, scope and methodology of the study and structure of the book, chapter 2 examines existing theoretical approaches to law and the judicial process in order to situate the place of ‘judicial activism’ within the jurisprudential landscape (pp. 18-31). By analyzing the three principal legal theories i.e. legal positivism, natural law, and sociological schools, it concludes that the age-old dominant legal theories have generally proved deficient on their own in terms of creating enough space for judicial activism in any society. Secondly, chapter 2 focuses on the claim, advanced by judicial restraintivists, that judicial activism is invariably a transgression of legitimate spheres of the judges, breaching ‘separation of powers’. It is argued that pure, complete or watertight separation of powers is not possible either in theory or in practice; nor it is desirable. Rather the dynamic theory of separation of powers acclaims some form of overlapping and friction, rejecting absolute functional autonomy of any state organ (p.32). This chapter argued that a justice based and society specific version of separation doctrine contemplates an activist judicial role in situations of injustice and un-constitutionalism. The chapter concludes that while the existing jurisprudential scenario in its present form hardly recognizes the need for judicial activism, perceptive judges may draw legitimacy for judicial activism by reformulating legal theories and adjudicative doctrines in light of their respective social conditions.

Chapter 3 takes up judicial activism from a comparative global context. By analyzing judicial activism in two westerns (the USA, and the UK) and three non-western countries (South Africa, India, and Pakistan), it demonstrates that judicial activism developed quite differently in western and non-western societies. By showing that judges need to operate under specific conditions of their respective jurisdiction, this chapter argues that judicial activism is fundamentally society-specific. It demonstrates that the British and American courts’ largely individual rights-based jurisprudence and their abstention of ‘polycentric’ social issues again reflected the dominance of legal positivism and the formalist vision of judges as mere declarers of the law (pp. 60-68). On the other hand, as the analyses of South African, Indian and Pakistani judicial activism showed, domestic socio-political conditions might actually provide the judges incentives to turn out to be activist by overcoming jurisprudential inhibitions and limitations and to inject certain ethical considerations into the adjudication process (pp. 68-93). Author also showed how social-justice oriented approach of Indian Judiciary made it world’s most active and powerful judiciary.

Chapter 4, the first among the four chapters concentrating on Bangladesh which is the central focus of the book under review. It analyses the development of judicial activism in Bangladesh with particular reference to the role of the Supreme Court of Bangladesh. By showing constitutional mandates author argued that primacy of public interest and social justice over individualistic interests, and the social orientation of the Constitution and the legal system requires the judges to pursue a society-specific notion of justice (p.99). The delineation of the role of the Supreme Court during the constitutional as well as the extra-constitutional (martial law) regimes stands out as an important feature of the book. The author demonstrates the challenges faced by the Supreme Court of Bangladesh during the martial law regimes. By comparing the Supreme Court’s role in martial law regimes and democratic regimes, the author provides the insight that the trends of judicial activism vary with the nature and functions of governance regime. A significant aspect of the post-1990 democratic regime has been a growing feeling among judges about the past judicial failings during martial law regime (p.123).

Chapter 5 focuses on Bangladeshi public interest litigation (PIL) as one of the most notable instances of judicial activism in terms of remedying executive excesses or democratising judicial system. The chapter analyses the nature and problems Bangladeshi judicial activism by examining prominent court decisions in PIL cases, as well as decisions in judges’ self-initiated actions (suo motu proceedings). It examines the reasons behind Bangladeshi judges’ under-activism in PIL cases, and critically assesses the future of PIL in Bangladesh, seeking to provide a broader definition of its social-justice-role, and argued for a shift of judicial focus from mere widening of access to justice to actually improving justice. In concluding remark the author found that Bangladeshi judges are becoming increasingly more justice-conscious, willing to apply PIL for improving justice and enforcing principles of constitutionalism (p. 182).

Chapter 6 examines the role of the Bangladesh’s higher judiciary during a state of emergency or controlled political regimes with reference to 2007-08 Emergency. The chapter shows that while the Supreme Court’s High Court Division by and large asserted self-confidence vis-`a-vis the pompous Emergency government, its Appellate Division either remained silent or paid undue deference to the executive (pp.201-3). It shows that the Bangladeshi higher judiciary throughout the Emergency regime suffered a crisis of public confidence arising largely from the judges’ failing, to live up to the peoples’ expectation. At last this chapter shows that, there is a new post-emergency realization (similar to Indian developments in 1970s) on the part of the court to remain vigilant against encroaches upon constitutionalism (pp. 74, 138, 204). Author argued that while for an assertive judiciary a guarantee of judicial independence or the existence of democracy is a pre-requisite, a self-confident, creative and willing judiciary even in an advanced political regime can help to achieve democratic values (p.188).

Chapter 7 shows factors that retard judicial activism as well as those that promote it as a golden mean adjudicative strategy. It begins with an analysis of potential barriers of judicial agency, especially emphasizing judicial non-independence as a major institutional barrier and shows its close nexus with judicial passivity. The prevalent apathy of domestic judges’ towards using unincorporated international human rights standards is shown as a barrier to judicial agency in effectively protecting rights and in drawing the state to the rule of law-path (p.251). This chapter then moves on into its central focus, to analyse certain juridical means which can potentially strengthen judicial agency. The chapter particularly analyses two increasingly globally common technologies, remedial expansion through innovation and judicial legal comparativism, and demonstrates their utility in Bangladesh as tools for balanced judicial activism. It specifically highlights the usefulness of the remedy of public law compensation in enforcing public accountability, and develops a framework of domestically-relevant judicial legal comparativism based on the need for cross-jurisdictional judicial learning, not uncritical adoption (pp.237-244).

Finally, chapter 8 summarises the findings and concludes the study. It reinforces that judicial activism can be exercised as a golden mean strategy and that this pragmatic approach to activist judging has sufficient moral, jurisprudential, constitutional and social legitimacy. The author reasserts that striking a proper balance between over-activism and unacceptable passivity or between the need for preserving the constitutional balance and removing injustices through activist interventions is a constant challenge for judges, chapter 8 develops a framework for this delicate balancing exercise, which is grounded in socio-politico-economic contexts of the judges’ particular society. The author scholarly Characterises, this society-conscious approach of judicial activism as ‘enlightened judicial activism’. At the end, a few suggestions are made to carve out a way forward for activating the judiciary of Bangladesh.

The main contribution of this excellent book lies in theorising and developing the concept of balanced enlightened judicial activism that manifests itself as a middle-ground golden mean strategy for improving justice. The book is the first systematic study on judicial activism in Bangladesh. The book contains a wealth of literature and exhaustive case law references, which is extremely helpful for future researchers on this subject.